People v. Jones

2018 IL App (1st) 151307

103 N.E.3d 991

The PEOPLE of the State of Illinois, Plaintiff–Appellee,

v.Darionte JONES, Defendant–Appellant.

No. 1–15–1307

Appellate Court of Illinois, First District, FOURTH DIVISION.

Modified opinion filed May 3, 2018

Michael J. Pelletier, Patricia Mysza, and Meredith N. Baron, of State Appellate Defender's Office, of Chicago, for appellant.

Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, Annette C. Collins, and Mary L. Boland, Assistant State's Attorneys, of counsel), for the People.

JUSTICE GORDON delivered the judgment of the court, with opinion.

¶ 1 After a bench trial, defendant Darionte Jones was found guilty of one count of predatory criminal sexual assault and sentenced to 10 years in the Illinois Department of Corrections (IDOC). The conviction stems from the sexual assault of a 12–year–old victim on August 30, 2011, when defendant was 17 years old. On appeal, defendant does not challenge the sufficiency of the evidence against him.

¶ 2 Defendant claims (1) that his trial counsel was ineffective for failing to move to dismiss the charges against him after the State allegedly failed to bring him to trial within the period required by section 103–5(a) of the Code of Criminal Procedure of 1963 (Speedy Trial Act) ( 725 ILCS 5/103–5(a) (West 2012) ); (2) that, as applied to defendant, the statute governing predatory criminal sexual assault is harsh and violates the cruel and unusual punishment clause of the eighth amendment, as well as the proportionate penalties clause; and (3) that the trial court abused its discretion by sentencing defendant to 10 years, in light of the fact that he was 17 years old at the time of the offense, had only one prior juvenile adjudication for a nonviolent offense, and expressed remorse at sentencing.

¶ 3 For the following reasons, we affirm his conviction and sentence.

¶ 4 BACKGROUND

¶ 5 On this appeal, defendant does not raise any claims concerning any of the evidence introduced at trial, or the sufficiency of the evidence, or any arguments made by the State concerning the evidence. Thus, we provide below only the facts needed to understand the claims before us.

¶ 6 At trial, the State's evidence showed that defendant, who was a school friend of the victim's sister, knocked on the door of the victim's home and the victim let him in. The 12–year–old victim returned to her bedroom to continue watching "Sponge Bob" on television when defendant entered, sat down next to her on the bed, and began kissing her. After the victim told him to stop, he pushed her back on the bed, laid on top of her, and pulled down her pants and underwear. His penis then made contact with her vagina.¹ When the victim heard the door open, she observed defendant run into the closet holding his clothes. When the victim's sister walked into the bedroom, the sister observed the victim on the bed without pants or underwear and found defendant in the closet wearing a shirt but no pants. The sister told him to leave and he did. The sister then told their mother what happened, and the next day the mother and sister told the victim's father who took the victim and her sister to the police station. Three days after the attack, a nurse examined the victim and observed, during the genital exam, redness, irritation, and a microabrasion, which was consistent with sexual assault. A sexual assault kit was performed and was negative for the presence of semen.

¶ 7 As noted, the trial court found defendant guilty of one count of predatory criminal sexual assault of a child. Prior to announcing the verdict, the trial court made specific findings of fact, including that "the State has not presented enough evidence for proof beyond a reasonable doubt" (1) that "the defendant committed an intrusion of his penis into the vagina" of the victim, (2) that "there was any force" or threat of force "in this matter," or (3) that "there was unlawful restraint." The trial court did find that "the State has proven beyond a reasonable doubt that there was contact between the defendant's penis and [the victim's] vagina," and "that the defendant knew that the victim * * * was under 13 years of age." As a result, the court found "there will be a finding of guilty with regards to * * * contact between the penis and the vagina of [the victim] with her being under 13 years of age"

¶ 8 Defendant filed a posttrial motion for a new trial that raised claims concerning the sufficiency of the evidence and the admissibility of certain pieces of evidence. However, the posttrial motion did not assert any of the issues raised on appeal.

¶ 9 At the sentencing on April 9, 2015, the trial court denied defendant's posttrial motion and then heard factors in aggravation and mitigation. In mitigation, defense counsel observed, among other things, that defendant was then presently 20 years old and the father of a 5–year–old and a 4–year–old. The factors in mitigation included the following statement by defendant. On appeal, defendant argues that this statement shows remorse, so we provide it here in full:

"DEFENDANT: I'm here today because, you know I made some wrong actions down the line and I do take full responsibility of everything that has happened. I just ask that you have lenience because I do have two children.

I made a mistake that should never have been made. I am sorry for what I did. Sorry for what other people have been through. That's it."

¶ 10 After listening to defendant's statement, the trial court sentenced him to 10 years with IDOC. Since defendant claims on appeal that the trial court abused its discretion by sentencing him to 10 years instead of the six-year minimum, we provide here the trial court's full statement explaining its reasons for selecting a 10–year sentence:

"THE COURT: All right. Thank you, sir.

Well, this Court having entered a judgment on the finding of guilt with regards to Count 1, predatory criminal sexual assault of a child, that being a Class X felony which carries a mandatory penitentiary sentence of between 6 to 60 years of incarceration in the Illinois Department of Corrections, I have considered the facts of this case, all of the matters in aggravation and mitigation.

The Court has also thoroughly read the Pre–Sentence Investigation Report noting that the defendant's first contact with the law was at 13 years of age for a felony offense of burglary in juvenile court. That was dismissed, but that's the defendant's first contact with the law.

Second contact was a residential burglary where [the trial court] found the defendant guilty—there was a finding of delinquency for a residential burglary, which is a Class 1 felony. He received five years juvenile probation, 150 hours of community service. He received some TASC as well.

And a violation of probation was filed in June of 2008 and a sex evaluation was ordered. And that is State's Exhibit No. 1, which was prepared for [the trial court] apparently July 28th of 2008.

The defendant apparently did not comply further with probation and his juvenile court judge sent him to the Illinois Department of Corrections as a juvenile. He was sentenced to IYC, which is the Juvenile Illinois Department of Corrections.² That was in October of 2009.

The State comments about numerous or lengthy criminal histories. These cases have all been dismissed, so the only one the Court is acknowledging basically is the residential burglary where the defendant was found delinquent and sent to the Illinois Youth Department of Corrections.

This case in which this Court found the defendant guilty of predatory criminal sexual assault happened in 2011. He was sent to IYC October 15th of '09. So a little less than two years after he was sentenced as a juvenile to the Department of Corrections, he commits this Class X felony upon a very unsuspecting 12 year old girl who he knew from the neighborhood, he knew her sister, and he committed an act of sexual contact with her.

The Court has read the PreSentence Investigation Report. The defendant does not have any adult criminal history. He has completed only two years of high school. The defendant has no job history. He has two children.

The Court finds based upon the aggravation, the mitigation that this Court has heard, the findings that the Court made, the Court finds that the following sentence is appropriate in this matter. This is a Class X felony as indicated where a sentencing range is between 6 to 60 years.

The Court finds that the sentence that is appropriate for this matter is a period of incarceration of 10 years in the Illinois Department of Corrections.

Based upon this sentencing range, based upon this Class X felony and the facts of this case, the Court does not find that 6 years is an appropriate sentence in this matter. The Court does not find that the maximum sentence is appropriate either. Ten years, which must be served at 85 percent, is an appropriate sentence for this offense of predatory criminal sexual assault."

We observe that 10 years, if served at 85%, is 8½ years. The trial court then found that "[c]redit for 1,316 days will be given to the defendant." This credit, if served at 85%, is over four years. The sentencing on April 9, 2015, was almost three years ago.³

¶ 11 Defendant then filed a motion to reconsider his sentence that claimed, among other things, that his sentence was "excessive in view of the Defendant's background and the nature of his participation in the offense." Before the trial court, defense counsel explained that she was challenging only the portion of the sentence that exceeded the minimum of six years. Thus, defendant did not raise before the trial court an issue that he raises on appeal, namely, that his conviction should be reduced to a Class A misdemeanor and that he should be sentenced to less than a year.

¶ 12 With respect to the motion to reconsider sentence, the following colloquy occurred:

"THE COURT: Do you have a motion to file, counsel?

DEFENSE COUNSEL: Yes, Your Honor. To

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